MIKE A. HOLLOWAY v. TMW, INC.

ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

MIKE A. HOLLOWAY,
Employee,
Applicant
v.
TMW, INC.,
Employer,
and
UMIALIK INSURANCE COMPANY,
Insurer,
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DECISION AND ORDER
AWCB Case No. 200005736
AWCB Decision No. 02 - 0 255
Filed with AWCB Fairbanks, Alaska
on December 9, 2002

We heard the employer’s petition, asserting the employee failed to cooperate with his reemployment plan, in Fairbanks, Alaska on November 14, 2002. The employee represented himself. Attorney Chris Zimmerman represented the employer and insurer (“employer”). We heard this member with a two-member panel, a quorum of the Alaska Workers’ Compensation Board (“Board”).[1] We closed the record at the conclusion of the hearing to consider this petition on November 14, 2002. For the reasons outlined below, we referred this matter to the Reemployment Benefits Administrator (“RBA”). We here memorialize that decision.

ISSUE

Is the employee failing to cooperate with his reemployment plan, under AS 23.30.041(n)?

SUMMARY OF THE RELEVANT EVIDENCE

The employee fell 16 feet from a ladder on March 30, 2000, injuring his knee and face while working as a painter for the employer. He saw Marc Dumas, M.D., who referred him to William Wennen, M.D., for treatment of a complex lip laceration, and to George Vrablik, M.D., for treatment of a fractured and dissociated patella. The employer paid the employee TTD benefit.

The employee was not able to return to his work as a carpenter, and Dr. Vrablik recommended vocational rehabilitation. The employer provided reemployment benefits, and the employee selected rehabilitation specialist Douglas Cluff to develop a reemployment plan. On December 10, 2001, the employee and employer agreed on a reemployment plan[2] to train the employee as an Estimator.[3] Under this plan the employee was to attend the University of Alaska, Fairbanks for 24 months from September 2002 through August 2004 to obtain an Associate of Applied Science degree.

In an informal reemployment conference on March 18, 2001, the employer requested an amendment to the plan in order to have the employee begin his classes in the summer session of 2002, but the employee wanted to follow the schedule of the agreed plan. The RBA instructed the employer to draft a plan amendment for his review. The employer retained reemployment specialist Mark Thomas to prepare a revised plan. The employee disagreed with the revised plan, and the RBA rejected the amendment in a decision dated April 19, 2002. As a result of tests administered to the employee, the RBA determined the employee needed to take remedial math and English courses, and on May 8, 2002 revised the employee’s plan to extend the training through December 19, 2002.

On referral from Dr. Vrablik, reconstructive surgeon James Bruckner, M.D., of the University of Washington Medical Center determined the employee’s quadriceps had retracted, and recommended quadriplasty surgery, combined with allograft extensor mechanism reconstruction.[4] Dr. Bruckner and the employee agreed to schedule the surgery in the near future.[5] In a Reemployment Benefits Plan Supplement Report, dated August 28, 2002, Rehabilitation Specialist Cluff reported the employee’s treating physician, Dr. Vrablik, was recommending the surgery by Dr. Bruckner. Dr. Vrablik indicated the employee’s recovery would take three months, and he could start the reemployment plan in the spring semester, January 2003. Specialist Cluff recommended that the RBA put the plan on hold for three months to permit the employee’s recuperation, starting the plan in January 2003.

In an August 29, 2002 letter responding to inquiries from Carol Jacobsen, R.N., the employer’s rehabilitation specialist/medical manager, Dr. Vrablik indicated the proposed surgery was reasonable and necessary. In a September 3, 2002 letter responding to further inquiries by Ms. Jacobsen, Dr. Vrablik indicated the proposed surgery was reasonable and was the only option for improvement of the employee’s condition, though it could possibly cause a loss in extension. Dr. Vrablik indicated the surgery would temporarily prevent the employee’s participation in his reemployment plan. Dr. Vrablik also indicated that if the employee elected not to undergo the surgery, he could begin his reemployment plan immediately.[6]

In a letter to Dr. Bruckner on September 4, 2002, Ms. Jacobsen reiterated an apparent telephone conversation with Bruckner, in which Ms. Jacobsen indicated the proposed surgery would have a questionable outcome, and stressed the insurer’s interest in having the employee begin his reemployment plan as scheduled, indicating the employee could choose to seek corrective surgery in the future, after completing his plan.[7] On September 9, 2002, Dr. Bruckner cancelled the employee’s surgery because the employer was reluctant to provide it.[8] In his medical note , Dr. Bruckner reported “… we told Michael the decision made by the insurance company and have told him that he should go through with his work retraining. He is concerned because the classes apparently started one or two weeks ago and he feels that he would not be able to enroll at this point….”[9]

On September 16, 2002, the employer filed a petition to the Board, asserting the employee failed to cooperate with his reemployment plan. On September 18, 2002, the employer controverted the employee's compensation for failure to begin his reemployment plan on September 5, 2002. The employer’s petition was set for a hearing on November 14, 2002.

In the hearing, the employer argued the employee has not cooperated with his reemployment plan. It also argued it should be able to come to us for relief, rather than having to take this matter to the RBA because the employee is in violation of AS 23.30.041(n), as a matter of law. In support of that argument, the employer cited our decision and order in Holmes v. Cast & Crew Payroll, AWCB Decision No. 95-0212 (August 18, 1995). We orally ruled that the employer would have to follow the statutory requirements of AS 23.30.041(o) and referred the dispute to the RBA. We here memorialize that decision.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

AS 23.30.041(n) provides

(n) After the employee has elected to participate in reemployment benefits, if the employer believes the employee has not cooperated the employer may terminate reemployment benefits on the date of non-cooperation. Non-cooperation means unreasonable failure to

(1) keep appointments;

(2) maintain passing grades;

(3) attend designated programs;

(4) maintain contact with the rehabilitation specialist;

(5) cooperate with the rehabilitation specialist in developing a reemployment plan and participating in activities relating to reemployability on a fulltime basis;

(6) comply with the employee Is responsibilities outlined in the reemployment plan; or

(7) participate in any planned reemployment activity as determined by the administrator.

AS 23.30.041(o) provides:

(o) Upon the request of either party, the administrator shall decide whether the employee has not cooperated as provided under (n) of this section. A hearing before the administrator shall be held within 30 days after it is requested. The administrator shall issue a decision within 14 days after the hearing. Within 10 days after the administrator files the decision, either party may seek review of the decision by requesting a hearing under AS 23.30.110; the board shall uphold the decision of the administrator unless evidence is submitted supporting an allegation of abuse of discretion on the part of the administrator; the board shall render a decision within 30 days after completion of the hearing.

AS 23.30.135(a) provides, in part:

In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided in this chapter. The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties. . . .

AS 23.30.155(h) provides, in part:

The board may upon its own initiative at any time in a case in which payments are being made with or without an award, where right to compensation is controverted, or where payments of compensation have been increased, reduced, terminated, changed, or suspended, upon receipt of notice from a person entitled to compensation, or from the employer, that the right to compensation is controverted, or that payments of compensation have been increased, reduced, terminated, changed, or suspended, make the investigations, cause the medical examinations to be made, or hold the hearings, and take the further action which it considers will properly protect the rights of all parties.

AS 23.30.041(o) specifically assigns the authority and responsibility to decide plan cooperation disputes to the RBA. The two sections of the statute providing for our review of the RBA's actions are AS 23.30.041(d) and (o). Subsection 41(d)[10] is not applicable since the employee's eligibility is not disputed. Under the explicit terms of the statute, the RBA decides issues of cooperation. Once the RBA cooperation decision is issued, the parties have a right to appeal the decision to us for a review under an abuse of discretion standard. The parties also have a right to bring to us the question of forfeiture of benefits for non-cooperation under AS 23.30.041(n) and (o).[11]

The employer agues that, under the rationale of our decision in Holmes, we should decide the issue of non-cooperation directly, without consideration by the RBA. However, we note that in Holmes we did not refer the plan cooperation dispute to the RBA because the resolution of that dispute was a settled matter of law, and the RBA would have no discretion to exercise. We find that the facts of the instant case are diametrically distinct.

Here, the employee was scheduled to undergo complicated knee surgery at the recommendation of his treating physicians. The presumption of compensability at AS 23.30.120(a) is clearly raised by the medical evidence in the record, providing the employee presumptive entitlement to his planned surgery under AS 23.30.095(a).[12] The record contains no medical opinions contrary to those of Drs. Vrablik and Bruckner concerning the proposed surgery.[13] Based on our review of the available record, we can find no substantial evidence rebutting the compensability of the employee’s planned surgery.[14] Also based on our review of the record, we find that the employee’s surgeon was discouraged from treating the employee by the specter of the employer’s resistance to payment for the surgery, a specter that we find the surgeon reasonably inferred from the actions of the employer’s rehabilitation specialist/medical manager.[15]

We find the evidence clearly indicates the employee anticipated undergoing surgery at the time his reemployment benefits plan was scheduled to begin, and the surgery was not cancelled until after the fall semester course had started. We cannot find that the employee was non-cooperative with his plan as a matter of law. Accordingly we must refer this cooperation dispute under AS 23.30.041(n) to the attention of the RBA for his decision, in keeping with the requirements of AS 23.30.041(o).

Nevertheless, under AS 23.30.135(a) and AS 23.30.155(h) we have the responsibility to ascertain the rights of the parties in the ongoing administering and adjudication of claims under the Alaska Workers’ Compensation Act. We find the issue of the employee’s possible entitlement to surgery under AS 23.30.095(a), the basis of the employer’s resistance to certain medical procedures, and the basis of the employer’s controversion of reemployment benefits are all integrally related to the appropriate implementation of the employee’s reemployment benefit plan. We find the resolution of those issues is necessary to determining the rights of the parties[16] in the reemployment process. Regrettably, the RBA does not have jurisdiction over these issues. We find these issues, AS 23.30.095(a) and AS 23.30.155(o) are squarely within our jurisdiction, not the RBA’s. We find adequate notice was not given to the parties concerning these issues prior to the November 14, 2002 hearing.[17] To enable the RBA to effectively administer the reemployment plan, we will exercise our discretion under AS 23.30.135(a) and AS 23.30.155(h) and direct the parties to attend a prehearing conference with Board Designee Sandra Stuller to resolve those issues.[18]

We direct Board Designee Stuller to investigate, clarify, and resolve the issue of the employee’s entitlement to the proposed surgery under AS 23,30,095(a), and the issue under AS 23.30.155(o) of whether the employee’s reemployment benefits were frivolously controverted and whether his surgery was frivolously controverted-in-fact through the employers’ actions.[19] If Ms. Stuller is unable to resolve these issues as they relate to the employee’s reemployment benefit plan, we direct her to set these issues for hearing before us, pursuant to AS 23.30.155(h) and 8 AAC 45.070(b)(3).[20]

ORDER

1. We refer the parties’ dispute under AS 23.30.041(n) concerning the employee’s cooperation with his reemployment benefits plan to the attention of the RBA, for him to decide in keeping with the requirements of AS 23.30.041(o).

2. We direct Board Designee Stuller to investigate, clarify, and resolve the issue of the employee’s entitlement to the proposed surgery under AS 23,30,095(a), and the issue under AS 23.30.155(o) of whether the employee’s reemployment benefits were frivolously controverted and whether his surgery was frivolously controverted-in-fact through the employers’ actions.

3. If through the prehearing process, Ms. Stuller is unable to resolve these issues as they relate to the employee’s reemployment benefit plan, we direct her to set these issues for hearing before us, pursuant to AS 23.30.155(h) and 8 AAC 45.070(b)(3).


Dated at Fairbanks, Alaska this 9 th day of December, 2002.

ALASKA WORKERS' COMPENSATION BOARD

______

William Walters, Designated Chairman

______

John Giuchici, Member

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.